David Shelby v. M. Gelios , 399 F. App'x 121 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 21, 2010*
Decided November 4, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 10-1419 Appeal from the United
States District Court for the
DAVID SHELBY, Southern District of Illinois.
Plaintiff-Appellant,
No. 05-cv-589-MJR
v. Michael J. Reagan, Judge.
BOB WHITEHOUSE, et al.,
Defendants-Appellees.
Order
While David Shelby was a prisoner at the Federal Correctional Institution in
Greenville, Illinois, a guard found marijuana and barbiturates in a cell that Shelby
shared with four other prisoners. Acting under the prison’s rules, which make each in-
mate responsible for all contraband found within his cell, a hearing officer found Shelby
guilty of possessing contraband and revoked 40 days of his good-time credits and or-
dered him to serve 30 days in disciplinary confinement.
Shelby later was transferred to a federal prison in Colorado. While there, he filed a
petition for a writ of habeas corpus. A district judge issued the writ, ruling that because
the evidence did not reliably establish which of the five prisoners was responsible for
bringing the drugs into the cell—or whether any of the other four knew about their
presence—the Constitution disallows punishment. Shelby v. United States, No. 03-F-1336
(OES) (D. Colo. Aug 1, 2004). Another prisoner had admitted that the drugs were his;
the judge thought that the disciplinary officer should have acted on that confession
rather than insisting on collective responsibility. The court ordered the Bureau of Pris-
ons to restore the good-time credits. Shelby then filed this Bivens action against three
* After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 10-1419 Page 2
persons who had played roles in the imposition of the disciplinary sanctions in Illinois.
After a remand for additional proceedings, Shelby v. Gelios, No. 07-3113 (7th Cir. June
11, 2008) (nonprecedential disposition), the district judge concluded that the defendants
are entitled to qualified immunity, because they acted before it was settled that holding
prisoners jointly responsible for contraband violates the Constitution. Until the decision
in Colorado, the judge concluded, the defendants were entitled to follow the regulation
of the prison in Illinois providing for collective responsibility.
We affirm on a different ground: it has not been established to this day that collec-
tive responsibility among prisoners is unconstitutional. We suggested in Ustrak v. Fair-
man, 781 F.2d 573, 575–76 (7th Cir. 1986), and held in Hamilton v. O’Leary, 976 F.2d 341(7th Cir. 1992), that the Constitution allows collective culpability. No later decision in
the circuit has held otherwise. The district judge in Colorado had a different view, but
none of the defendants was a party to the Colorado litigation, so none is bound by prin-
ciples of issue or claim preclusion. A decision of a district judge in Colorado does not
make law for the Seventh Circuit; indeed, a district judge’s decision is not authoritative
even within the rendering district, for other judges are free to disagree with it. Qualified
immunity would block any effort to establish, as a new principle of law in this circuit, a
rule that the Constitution forbids prisoners’ joint responsibility for contraband found in
shared spaces. Accordingly, the judgment of the district court is affirmed.